Tag Archives: Conor Friedersdorf

On Jan. 5, 1999, a federal district court in Washington, D.C., approved a preliminary consent decree — essentially a seal of approval for a settlement — granting class-action relief for a wide swath of black farmers. Give or take an unseemly lawyer, it looked like the angels had won. It was a victory bipartisan in the making: Speaker Newt Gingrich had helped push through legislation waiving the statute of limitations for discrimination complaints, allowing the suit to clear a crucial legal hurdle. But the story was far from over, and Pigford v. Glickman would prove the settlement that launched a hundred thousand frauds.

The “Pigford class” — the range of individuals eligible to claim settlement money — originally was defined as

all African-American farmers who (1) farmed between January 1, 1983, and Feb. 21, 1997; and (2) applied, during that time period, for participation in a federal farm program with USDA, and as a direct result of a determination by USDA in response to said application, believed that they were discriminated against on the basis of race, and filed a written discrimination complaint with USDA in that time period.

Both sides acknowledged that the class size wasn’t likely to exceed 2,500. But the seeds of abuse were already sown. Despite the fact that the class was at first strictly limited to those who had “filed a written discrimination complaint” with the USDA, the settlement crucially allowed that most members of the class lacked any documentation of these complaints, purportedly owing to poor record-keeping by the USDA. So the resolution mechanism offered potential claimants two “tracks” toward settlement money. Track B required a higher bar for evidence — the “preponderance” standard traditional in civil actions, demonstrated during one-day “mini-trials” before court-appointed arbitrators — but it came with no cap on potential awards. Track A provided, in the words of the case’s judge, “those class members with little or no documentary evidence with a virtually automatic cash payment of $50,000, and forgiveness of debt owed to the USDA.” Track A claimants would also get their taxes on that debt paid directly to the IRS for them, and priority consideration on their next USDA loan application.

To get their checks, Track A claimants were required to show court-appointed facilitators “substantial evidence” that they had had “communication” with the USDA, a member of Congress, the White House, or any federal, state, county, or local official regarding a discrimination complaint. How “substantial”? According to the consent decree, “something more than a ‘mere scintilla’” — in practice, as little as the corroboration of one’s story by a single individual who was not immediate family. The definitions of “communication” and “complaint” were stretched as well: Under the agreement, even participating in a “listening session” with USDA officials was as good as filing a discrimination complaint. And in cases where there was no documentary evidence whatsoever of communication with the USDA, a popular defense was for claimants to explain that USDA officers would not even give them the forms and applications they requested — in one fell swoop both demonstrating the discrimination and accounting for the lack of a paper trail. Thus could blacks who had never cultivated land they’d owned or rented — who in point of fact might never have mown a lawn or tended to a shrub — claim that systemic racism thwarted their farming careers before they ever started. Such claimants came to be known as the “attempted to farm” class, and by some estimates as many as 92 percent of all Pigford filers marched under their banner.

In the current issue of National Review, Daniel Foster has a long piece on Pigford vs. Glickman. As Wikipedia notes, the Pigford case is “a class action lawsuit against the United States Department of Agriculture (USDA), alleging racial discrimination in its allocation of farm loans and assistance between 1983 and 1997. The lawsuit ended with a settlement in which the U.S. government agreed to pay African American farmers US$50,000 each if they had attempted to get USDA help but failed. To date, almost US$1 billion has been paid or credited to the farmers under the settlement’s consent decree.”

As Salonexplains, the case is a matter of public controversy largely because Andrew Breitbart has become obsessed with it. His allegation is that the payout is rife with fraud and political corruption. I haven’t mentioned the matter before because having witnessed Breitbart’s carelessness with facts, the egregiously sloppy journalism he publishes on a daily basis, and his hubristic, immoral, “ends justify the means” approach to activism, I have serious doubts about his integrity and a strong conviction that his ethical compass is broken. More to the point, I just can’t trust a damn thing he publishes, and having discredited himself on a national scale in the Shirley Sherrod case, a lot of others agree.

But I’ve enjoyed Foster’s work for awhile now, and critical as I’ve been of a couple colleagues he works with at NR, the publication retains the ability to publish solid pieces, especially the ones prepped for print.

Although I can’t personally vouch for the facts in his Pigford story, having never reported on the matter myself, it reads like a solid piece – one that raises serious questions worthy of scrutiny. Alas, it is behind National Review’s paywall, and that presents a problem: As press coverage of the Pigford case increases – Breitbart is touting it singlemindedly at CPAC, and the stories are inevitable – the conversation is starting to focus is on the man whose heat-to-light ratio detracts from a cool-headed assessment of facts more than anyone in America. One purpose of this post is to suggest that we’d all be better off focusing the discussion on the NR piece, paywall or no. Certainly, liberal bloggers writing about the matter should acquire access to it. I’d be curious to see if they have a persuasive rebuttal. If so, I’ll air it here. And if not – if the Foster piece has everything right – the story definitely merits attention.

Here’s a very brief summary:

– Everyone agrees that between 1983 and 1997, the USDA discriminated against black farmers.

– The class action lawsuit made eligible for compensation farmers or aspiring farmers whose interests were harmed due to USDA discrimination. (There were other requirements too, but forget that for a moment.)

– According to Foster’s piece, a 1997 census study found a total of 18,500 black farmers nationwide.

– Yet there are nearly 100,000 claimants in the Pigford case.

There’s a lot more to Foster’s story, and this matter generally. But that gap between the number of claiments and the total number of black farmers in America is what struck me. If accurate it suggests widespread fraud.

A word about the bigger picture.

There are conservative bloggers expressing outrage that Americans haven’t been told more about this story. It’s worth pondering that reaction. It’s understandable: the misuse of public funds is always a legitimate story, and I hope this one gets reported out if that’s what has happened. But the fact that Americans have never heard of the Pigford case before now is most damning because it means we were utterly ignorant of the fact that the federal government was discriminating against thousands of blacks for almost 15 years, and as recently as the late 1990s! That is far more troubling than the possibility that private citizens perpetrated fraud on a poorly conceived settlement (though it doesn’t excuse it).

One narrative taking hold is that the Pigford case is about political correctness – that the fraud is “reparations in disguise,” and is enabled by a mainstream media willing to look the other way rather than inform the public about an injustice. Anyone spreading that narrative ought to remember that although the federal government’s racism against some Pigford claimants has been written about some in the media, it remains an obscure story known to very few people – and most of them didn’t show any interest in the story until it fit into the narrative of PC excess and the left buying off votes.

There’s nothing wrong or unnatural about political adversaries tuning into a story when their opponents may be guilty of corruption. A rare benefit of partisanship is that it creates an incentive to expose bad behavior. And the rest of us shouldn’t care about their motives insofar as it affects how we go forward– if fraud has been perpetrated on a large scale, better that we learn about it if only to prevent the same sort of thing in the future. Had the federal government discriminated for years against black farmers, however, then paid them off efficiently and without fraud, the vast majority of people in the conservative movement – and most of America along with them – would’ve ignored the whole Pigford matter entirely. Is that the mark of a society overrun by political correctness?

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself.

I’m reminded of David Brooks, lamenting the fact that Sonia Sotamayor didn’t go to school in the ’50s, while neglecting to mention that her alma mater (Princeton) didn’t even admit women until a decade later. The opportunistic rush to elide hard problems, in order to disparage imperfect, and perhaps even wrongheaded, solutions is an essential feature of modern conservative. In regards to blacks it shows itself in this sense that racism–even government-sponsored racism–isn’t actually a problem, people trying to fix it are a problem.

These concerns are poppycock – it is simply not the case that the discrepancy between the number of claimants and the number of black farmers in 1997 “suggests widespread fraud.” As mistermix correctly points out, some very rudimentary fact-checking provides the answers to a lot of these concerns.*

For starters, this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers. Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period. At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA. These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans. We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.” Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made. But to the contrary, 30% of claims that were made under Pigford I were ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above. But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims. We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans. Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983? I think the answer to that is “absolutely.”

None of this is to say that there hasn’t been and will not be successful fraudulent abuse of these settlements. Where such fraud is discovered, clearly it should be prosecuted. And no doubt, given the stakes involved, it should not be a surprise if these settlements turn out to be more prone to fraud than most – we are talking about large sums of money readily available with a relatively low burden of proof. Unfortunately, such a low burden of proof is probably necessary here – unless the overwhelming majority of claims are in fact fraudulent, it’s safe to assume that forcing them to be tried under a higher standard of proof would impose far more costs than they would save.

What is appalling here is the ease with which the information I’ve noted above is readily available, and the utter failure of both Breitbart and Conor (and, I assume, Foster) to cite any of it. Increasingly, it seems that the role of more high-brow political journalism is simply to, consciously or not, provide intellectual cover for the base’s ill-supported memes rather than seeking truth or attempting to challenge the base. Instead of talking to the base, they merely parrot it.**

[UPDATE: 1. In the comments below, Conor acknowledges his error, for which he certainly deserves credit, and which is something that is certainly all-too-rare in the blogosphere.

After Conor Friedersdorf was thoroughly “fisked”—to use a word he can understand—for pimping an error-filled National Review article that supported Andrew Breitbart’s attempt to start a race war out of a settled case of discrimination, he responded with a little humility:

All I can say is that it was an honest mistake, and while I wish I would’ve raised it in my initial post, I am at least glad that I blogged about this issue because a lot of folks who were wrong in the same way I was now have the benefit of understanding this controversy better. I’ll certainly deploy your arguments as this case gets covered elsewhere.

That lasted about as long as it took the author of the original National Review, Dan Foster, to put up a lengthy defense of his original piece:

The main thing you need to know about that defense is that, at many key points, Foster cites either Andrew Breitbart or Breitbart’s helper, Lee Stranahan, for factual evidence. He many have done independent reporting on his own, but when it comes down to the important facts, he’s citing a person Conor has acknowledged that he can’t trust. But Conor’s more than willing to pimp Breitbart’s story through an intermediary. How is that anything but useful idiocy?

I think my piece largely speaks for itself (although there was certainly some stuff that had to be cut: the original draft was twice as long as what ended up in the mag), and so I hope Coates and Thompson will read it. But let me briefly try to answer their criticisms, in order. (Apologies: if you haven’t read it, some of this will lack context).Thompson has seven points. Here’s one:

. . . this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers. Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Okay, the story fully grants that there is statistical evidence of discrimination against black farmers in the relevant time period, so we’re not in disagreement there. To say, though, that “the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs” in the settlement is a bit off. It’s sort of a “when did you stop beating your wife?” question. The settlement meant that the USDA didn’t have to admit, in the legal sense, to discrimination (though we’ll see later that they fell all over themselves to admit it in the moral sense), and that they could avoid the messy process of investigating and adjudicating it. Like many (most, all?) settlements, the USDA traded cash for the risk of legal liability.

Here’s two, four, and five, and seven, which are related:

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period. At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

[. . . ]

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans. We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.” Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

[. . .]

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above. But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims. We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans. Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983? I think the answer to that is “absolutely.”

As to the number of black farmers, I mention both the 18,500 and 33,000 numbers in my piece; neither jibes with the number of claims that have poured in. The point about the difference between black-owned farms and black farmers isn’t really true either. Take a look at this table from the 1992/1997 Ag census. It does in fact distinguish between black-owned farms and black-leased or -rented farms, and it provides numbers for black tenant farmers. They hew closely to the 18,500 figure. But even if we take the biggest number that Thompson’s multi-step statistical conjecture produces — 50,000 black farmers — we’re still missing half the claimants. It’s also worth noting that the type of loans and assistance the USDA is alleged to have withheld from blacks were for farm operators, not agricultural workers broadly construed. So if that’s what Thompson had in mind in making his distinction then it’s not clearly relevant. Look, I — and parties on both sides of the case — yield that USDA record-keeping makes it difficult to pin down how many black farmers there were at any given time. In fact, much of my article is basically an argument that that problem is what opened the case up to fraud.

Doubling back now to Thompson’s third point:

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA. These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Aye, there’s the rub. The original Pigford class contained a few hundred farmers, and while the settlement was being negotiated, both sides agreed that when it was all said and done, there would likely be no more than 2,500 or so potential claimants. But trial lawyers and a sympathetic judge wrote the claims process in such a way that almost no proof was required to collect $50,000. Not only did you not have to prove that you were actually discriminated against by the USDA — you didn’t have to prove by a preponderance of evidence that you had even applied for a loan. Again, this is all in the piece and I won’t rehearse it here. But ask whistle-blower Pigford claimants and even advocates for Pigford II about the category of “attempting to farm” claimants, which by some measures account for the vast majority of outstanding claims.

And lastly Thompson’s sixth point:

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made. But to the contrary, 30% of claims that were made under Pigford Iwere ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Once you’ve read the bit in my piece about the standards of evidence required to collect $50,000 under the settlement you’ll laugh out loud at that last sentence. And if you read Andrew Breitbart’s report, in which he interviews USDA workers who actually rubber-stamped the claims, you’ll see that approval was nearly automatic in a number of jurisdictions.

Now let’s deal with Coates. Here’s the meat of his criticism:

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself.

Indeed it would be extremely worrisome if the federal government under three different presidents and two different parties had discriminated wholesale against black farmers. But the queer thing about the USDA programs at the heart of the Pigford case is that they were locally administered. The USDA bankrolled these loan programs, but they were actually run by hundreds or thousands of county boards in dozens of states, virtually all of them elected by the local farmers. Centralized, top-down, discrimination by the federal government would be awful but plausible; the sheer number and geographic scope of the claims suggests a remarkable universality. Maybe it is the case that a thousand different county boards, independently, thought blacks didn’t deserve farm operating loans. But there are also anecdotes about claims coming out of the Washington, D.C., suburbs; out of Chicago; out of a county in Arkansas where the entire loan board was black. . . .

As to his point about what this case, and my story, says about racial politics in America, I can only reiterate: There was discrimination against black farmers, and it was shameful. But so too is the race-hustling, trial-lawyer greed and fraud that has come out of the settlements. I didn’t even include in the piece stuff about reparations activists and unsavory Nation of Islam types glomming onto Pigford as a proxy for their own goals. E.g. Gary Grant, President of the Black Farmers & Agriculturalist Association (BFAA), which played a pivotal role in expanding Pigford settlements, went so far as to tell Fox News in 2001 that he doesn’t care if all the claimants are really farmers. “If you are an African-American, you deserve $50,000 because your roots are in farming and your folks have already been cheated,” he said. “You are collecting what your grandparents didn’t have the opportunity to.” In 2003, BFAA vice-president Ridgely Muhammad, who moonlights as “minister of agriculture” in the Nation of Islam, wrote on a black nationalist web site that the Pigford settlement illustrated both promise and peril for the reparations movement: the promise of showing how to navigate the “legal flaws in current reparations lawsuits” and the peril of allowing “white ‘do gooder’ lawyers’” to profit from the proceedings. Faya Ora Rose Touré (Rose Sanders until she elected to step away from her “slave name”) is a Selma, Alabama civil-rights lawyer who won an appellate court ruling to extend the filing deadline for Pigford claimants. She has also long been a dogged fighter for reparations, having once gone to court alongside Johnny Cochran to seek compensation from corporations that profited from slavery. Today, she is Shirley Sherrod’s lawyer. And then there is Dorothy Tillman, a former (Obama endorsed) Chicago alderman who during her tenure in public life has made reparations her signature political issue, and who has been recognized by Rep. John Conyers (D., Mich.), Congress’s greatest champion of reparations, for her work for “Black farmers and for justice.” The list goes on.

Breitbart and documentary filmmaker Lee Stranahan, who is working on a Pigford project, tell me they have recently recorded evidence of a black activist giving what Breitbart called a “demented Princeton Review” seminar on how to game the settlement to a packed black church in the South. I haven’t seen the tape so I didn’t run with it and I’ll reserve judgment, but I do know (and again, it’s in the piece) that real black farmers who were really discriminated against are still hurting, because the settlements were structured to spread the money far and wide, and right quick, not to actually bring relief to struggling black farmers who are still working the land.

To paraphrase Coates, the point is this: You would think that a bunch of fraudsters and fringe ideologues using legitimate claims of past discrimination to bilk taxpayer dollars and propagate a divisive program of grievance politics, not in the distant or recent past, but today, would be a pet cause for people interested in overcoming the legacy of racism in this country. In fact those who claim that banner are disturbed by the exposure of that problem — not the problem itself.

As the Congressional Research Service report notes, “as of November 2010, 15,642 (69%) of the 22,721 eligible class members had final adjudications approved.” Foster says you’ll “laugh out loud” at the necessary evidentiary standards for filing under Track A, but someone could have plausibly walked away from reading Foster’s piece believing none of the 94,000 claims would be dismissed, when 31 percent of those in the original settlement were.

The claimants were required to show “substantial evidence” that they were entitled to part of the settlement. This doesn’t fit neatly into an article, so it’s understandable Foster didn’t include it, but I’ll just blockquote it here:

• a copy of the discrimination complaint filed with USDA or a copy of a USDA document referencing the discrimination complaint;

• a declaration by a person who was not a member of the claimant’s family, stating that the declarant had first-hand knowledge that the claimant had filed a discrimination complaint with USDA and describing the manner in which the discrimination complaint was filed;

• a copy of correspondence from the claimant to a member of Congress; the White House; or a state, local or federal official averring that the claimant had been discriminated against (except that, in the event that USDA did not possess a copy of the correspondence, the claimant also was required to submit a declaration stating that he or she sent the correspondence to the person to whom it was addressed);

• a declaration by a non-familial witness stating that the witness had first-hand knowledge that, while attending a USDA listening session or other meeting with a USDA official (or officials), the claimant was explicitly told by a USDA official that the official would investigate that specific claimant’s oral complaint of discrimination.

In his response, Foster alludes to the Big Government report that claims to cite testimony from “USDA workers who rubberstamped the claims.” Adjudicating whether the claims have merit was not handled by the USDA; it’s handled by a court-appointed third party, who is backed up by another court-appointed monitor who double checks the claim. The USDA can provide evidence as to whether or not a particular claim is false, and I’m guessing that might be what he means.

Let me just point out, though, that if 31 percent of the claims are being denied, it literally means they aren’t being rubber-stamped. The reason the terms were so generous was that, as Media Matters points out, folks at the USDA were literally throwing complaints into the trash, making documentation on the government’s end difficult. There’s basically a choice here — you can make it easier to prove a claim and risk that some terrible people will try to defraud the government, or you can make it so difficult that a number of people with legitimate claims won’t be able to prove they were discriminated against. In either case, it’s possible, even likely, that some people who deserve money won’t get it and some who don’t will. But that doesn’t amount to “massive fraud,” nor do I think it discredits the entire process.

Fortunately, if you believe that the old terms were too generous, there are additional fraud protections in the Claims Resolution Act, that further empower the claims adjudicator and gives access to claims information, including the names and address of the claims filers, to the GAO. Not that you’d know that from Foster’s piece. Chances are if/when someone tries to file a fraudulent claim, both we — and Congress — will hear about it.

Around 74,000 people filed claims past the deadline, the vast majority of these were dismissed for not meeting the deadline. The large number of late claims prompted the Senate to pass — unanimously, I might add — a second settlement.

Pigford II

$1.15 billion was approved to address the claims that weren’t handled by Pigford I. The total number of dollars anyone has been paid from this is zero. Every single one of the late claimaints who didn’t squeak through under Pigford I will have to refile, and according to the USDA, not a single claim has been filed yet because the court hasn’t assigned an adjudicator. It’ll be another two to three years before any Pigford II claims are adjudicated.

That’s what makes the allegation of “94,000 phantom farmers” are getting payouts inaccurate. Foster never mentions that only around 16,000 have seen any money at all, while around 7,000 other claims were denied (“the gravy train shows no signs of slowing down”). He’s using the total number of claims filed in the past, leaving the reader with the impression that all of them will be approved, even though all the late filers have to refile. His original piece also leaves the impression, both in his discussion of the evidentiary standards being used for Track A, and the use of the 94,000 number in his conclusion, that everyone is just getting handed a check by the USDA. Just get your friend Carl to say you were a black farmer.

Foster finds the USDA’s widespread, systemic discrimination against black farmers to be inconceivable, because of the scale involved. “Centralized, top-down, discrimination by the federal government would be awful but plausible, the sheer number and geographic scope of the claims suggests a remarkable universality.” I find that to be an astonishing argument. Jim Crow was not a “centralized, top-down affair”; it was a matter of “local administration.” “Local administration” is how segregation worked; it’s how Southern Democrats did things like ensure the benefits of the New Deal would be restricted to whites.

I also had a really visceral emotional reaction to Foster’s original conclusion:

At a December 8 signing ceremony, President Obama heralded Pigford II as the close of “a long and unfortunate chapter in our history.” In a way, one hopes the president is right—that the credulity, or perhaps the shame, of the American government and its taxpayers cannot be strained to accommodate the petty greed of more than 94,000 phantom farmers, and that the con will finally have run its course. But that is unlikely. Two Pigford style class-action suits—one for Hispanic farmers, another for women—with the potential to dwarf current settlements are working their way through the courts. Like so many Pigfords to the trough.

Look, the genteel white populism of this paragraph can’t be explained away. Not only have those greedy black frauds stuck their snouts into your wallet, but the Messicans and womens are on their way. There’s simply no way to credibly pivot from a statement like this, which attacks the very idea of financial restitution for past wrongs, to genuine concerns about farmers who deserved money that didn’t receive it because of the settlement terms.

Historically speaking, according to the Congressional Research Service citing an internal USDA report tracking their practices between 1990 and 1995, the crowd at the trough actually looks considerably less diverse:

According to the commissioned study, few appeals were made by minority complainants because of the slowness of the process, the lack of confidence in the decision makers, the lack of knowledge about the rules, and the significant bureaucracy involved in the process. Other findings showed that (1) the largest USDA loans (top 1%) went to corporations (65%) and white male farmers (25%); (2) loans to black males averaged $4,000 (or 25%) less than those given to white males; and (3) 97% of disaster payments went to white farmers, while less than 1% went to black farmers. The study reported that the reasons for discrepancies in treatment between black and white farmers could not be easily determined due to “gross deficiencies” in USDA data collection and handling.

Shortly afterward, Agriculture Secretary Dan Glickman suspended farm foreclosures and ordered an investigation into the matter. Before then, no one had been particularly bothered by it, for obvious reasons. Some snouts are more welcome at the trough than others.

I have no doubt that some people will try to defraud the government out of money here, nor do I discount the possibility that some have. Frankly, I think the bigger worry is that some people who deserve money will be bilked out of it by people posing as agents or lawyers and promising to ensure, for a fee, claimants get their settlement money. A class-action settlement is a juicy target for con artists. Those people deserve to be in jail. The fact that some people will try does not invalidate the government’s effort to rectify past wrongs.

Finally, I just want to address Foster’s original nut graf:

And in finally securing justice for himself and the few hundred farmers who first joined his class-action suit, he’d unwittingly set off an injustice greater than the one he sought to rectify: one that would involve the waste of billions of dollars, systemic fraud implicating top federal officials, the unseemly electioneering of two presidential campaigns—even murder.

Maybe I’m missing something here, but I don’t see how Foster has proved that billions were wasted or that there is systemic fraud in the Pigford settlement. It’s only “unseemly electioneering” if you pretend there wasn’t substantial bipartisan support for the settlement, or if you think the president is unmoved by racial injustice and merely spends his entire day thinking about how to get whitey’s money. The idea that the settlement itself is responsible for people who planned to defraud the government by making a false claim and murdered a witness they feared might talk is just stupid. But this paragraph certainly reflects the ideological disposition of most conservatives — that efforts to rectify past racial injustices always create “more injustice” than the original crime.

At a press conference at CPAC featuring Rep. Michele Bachmann, Rep. Steve King and Andrew Breitbart, black farmer Eddie Slaughter tells his impassioned story about how the Pigford settlement has actually hurt the original and actual victims of discrimination at the hands of the USDA.

This is going to get complicated quickly. My apologies. If you’ve never heard the word Pigford before this may be a post to skip. In my last stint guestblogging at The Daily Dish, I wrote a post about the Pigford controversy, where I basically argued that since it’s inevitably going to be an ongoing matter of dispute, the best way to talk about it is to focus on the reporting published in National Review by Daniel Foster, a writer whose basic integrity as a person I trust, rather than the stuff published by Andrew Breitbart, whose outspokenness on the matter is clearly outweighed by the numerous instances in which he has brazenly injected egregiously misleading information into public discourse.

So often, stories like this turn into conversational train wrecks. I see one coming – and an opportunity to do better. Let’s treat this like a complicated matter, one where even people writing in good faith can make mistakes, making it a perfect fit for the vetting function that comes from honest back-and-forths in the blogosphere.

The vetting started immediately. I’d noted an aspect of Foster’s piece that seemed particularly persuasive to me. Ta-Nehisi Coates, Adam Serwer, and Mark Thompson pushed back hard. I quickly saw that I’d been mistaken in buying into that particular argument, and said so. As is their wont, the folks at Balloon Juice misunderstood and misrepresented my narrow apology.

Meanwhile, National Review posted Foster’s piece online, so that folks no longer had to rely on my poor summary. Foster pushed back against his critics. Serwer went another round. And then the good people at Bloggingheads arranged for a diavlog between Foster and Serwer, which can be seen here. Some of the conversation is tedious through no fault of the interlocutors. This is a complicated story to talk about, especially for an audience that isn’t initiated. Other parts are riveting. It isn’t often that you see two writers with wildly different takes on race in America willing to confront one another and converse in ways that make both of them uncomfortable.

The exchange that has played out is basically what I hoped for when I wrote that initial post urging engagement with Foster’s piece. I’d wager that Foster, Serwer, Thompson and Coates would all write things a bit differently if they could redo this whole exchange. On the whole, however, I think they’ve all conducted themselves rather well: more precisely, whatever their mistakes, they’ve all argued in good faith, with intellectual honesty and a desire to leave the public better informed about the matter at hand. Put another way, if everyone merely rose to the level of imperfect reporting, analysis and argument displayed here, American public discourse would be greatly improved.

But damn, this is a messy, maddening process. Among the writers I’ve mentioned, there were heated exchanges, hurt feelings, occasional suspicions of bad faith, tedious intervals that didn’t make for particularly entertaining journalism… and as a reader, one had to wade through all of it for the payoff of being a lot better informed on the other end… but even being better informed, there wasn’t the satisfaction of easy answers or resolution to all the disagreements.

What I find so wrongheaded about the Balloon Juice approach to this story – and the approach taken by folks who emailed me insisting that I should have never written my initial post – is the glib insistence that merely wanting a robust exchange was tantamount to being Andrew Breitbart’s useful idiot.

One day soon, my name and performance evaluation could be printed in your morning newspaper. It will tell you that I’m a teacher who has clear strengths and weaknesses in helping my students advance academically.

But as valuable as my so-called “Teacher Data Report” is in helping me identify these areas, it really doesn’t say much about the overall quality of my teaching. And printing the results — as an NYC judge just gave the city the right to do — will do little to make me, or any of my colleagues, better teachers. At least, not right away. What will help is the Department of Education and the teachers’ union putting aside their differences and improving these reports so that teachers like me receive good information about our performance and clear steps towards achieving our classroom goals.

As an educator, I want to be evaluated. I know that my students’ success hinges on the quality of my teaching. The Department of Education is actually on the right track with the “value-added” method it uses to calculate the impact teachers have on their students’ academic growth. Value-added compares a student’s predicted performance on standardized assessments with how he or she actually performs.

Recently, Megan McArdle and Dana Goldstein had a very interesting Bloggingheads discussion that was mostly about teacher evaluations. They referenced some widely discussed attempts to evaluate teacher performance using what is called “value-added.” This is a very hot topic in education right now. Roughly speaking, it refers to evaluating teacher performance by measuring the average change in standardized test scores for the students in a given teacher’s class from the beginning of the year to the end of the year, rather than simply measuring their scores. The rationale is that this is an effective way to adjust for different teachers being confronted with students of differing abilities and environments.

This seems like a broadly sensible idea as far as it goes, but consider that the real formula for calculating such a score in a typical teacher value-added evaluation system is not “Average math + reading score at end of year – average math reading score at beginning of year,” but rather a very involved regression equation. What this reflects is real complexity, which has a number of sources. First, at the most basic level, teaching is an inherently complex activity. Second, differences between students are not unvarying across time and subject matter. How do we know that Johnny, who was 20 percent better at learning math than Betty in 3rd grade is not relatively more or less advantaged in learning reading in fourth grade? Third, an individual person-year of classroom education is executed as part of a collective enterprise with shared contributions. Teacher X had special needs assistant 1 work with her class, and teacher Y had special needs assistant 2 working with his class — how do we disentangle the effects of the teacher versus the special ed assistant? Fourth, teaching has effects that continue beyond that school year. For example, how do we know if teacher X got a great gain in scores for students in third grade by using techniques that made them less prepared for fourth grade, or vice versa for teacher Y? The argument behind complicated evaluation scoring systems is that they untangle this complexity sufficiently to measure teacher performance with imperfect but tolerable accuracy.

Any successful company that I have ever seen employs some kind of a serious system for evaluating and rewarding / punishing employee performance. But if we think of teaching in these terms — as a job like many others, rather than some sui generis activity — then I think that the hopes put forward for such a system by its advocates are somewhat overblown.

There are some job categories that have a set of characteristics that lend themselves to these kinds of quantitative “value added” evaluations. Typically, they have hundreds or thousands of employees in a common job classification operating in separated local environments without moment-to-moment supervision; the differences in these environments make simple output comparisons unfair; the job is reasonably complex; and, often the performance of any one person will have some indirect, but material, influence on the performance of others over time. Think of trying to manage an industrial sales force of 2,000 salespeople, or the store managers for a chain of 1,000 retail outlets. There is a natural tendency in such situations for analytical headquarters types to say “Look, we need some way to measure performance in each store / territory / office, so let’s build a model that adjusts for inherent differences, and then do evaluations on these adjusted scores.”

I’ve seen a number of such analytically-driven evaluation efforts up close. They usually fail. By far the most common result that I have seen is that operational managers muscle through use of this tool in the first year of evaluations, and then give up on it by year two in the face of open revolt by the evaluated employees. This revolt is based partially on veiled self-interest (no matter what they say in response to surveys, most people resist being held objectively accountable for results), but is also partially based on the inability of the system designers to meet the legitimate challenges raised by the employees.

1. Evaluations establish the principle that there is such a thing as performance in the first place. A great deal of discussion nowadays in education revolves around the idea that what we need to “fix the schools” is great teachers. But if that’s what we need, we’ll never do it. What we need, instead, are mechanisms for getting marginally better performance, year after year, from a teaching pool that remains merely adequate.

One bit of low-hanging fruit for achieving that goal, meanwhile, is the ability to dismiss the bottom 5% of teachers in terms of performance. Not only are these teachers failing comprehensively in their own classrooms, but their mere presence has a corrosive effect on an entire organization – on the teachers, on the students, on the management of the school. But right now, firing these teachers is essentially impossible. For all the difficulty of doing a rigorous evaluation in order to improve teaching performance across the board, I suspect it is a whole lot easier to identify the worst teachers in the school. If that could be done, the pressure to be able to terminate them would be significant, and that could do a lot to improve school performance right there.

2. Value-added metrics wind up punishing perfectly good but not spectacular schools with above-average student bodies. It may be that these schools should suffer reputationally, because the staff is not actually delivering as much value as they should. But high-stakes standardized testing actually pushes these schools to destroy themselves, wiping out the programs that actually do deliver value to these high-aptitude students and instead focusing on teaching to the tests.

That’s not an argument against using value-added metrics as such. It’s an argument that they need to be used intelligently, with some understanding of what “value-added” means at different points on the performance spectrum. But that, in turn, would require admitting that different standards are needed for students with different aptitude, which, in turn, is extremely difficult for our education system to admit. (And, admittedly, it’s a problem in corporate cultures that cross widely different customer bases as well. How well would Wal-Mart manage Tiffany?)

3. Nobody goes into teaching “for the money” – that is to say, teachers in aggregate make significantly less than people with their educational credentials and academic aptitude could make in other professions. So monetary rewards are useful primarily going to prove useful as signaling devices. There’s a lot of evidence coming in from high-performance charter schools suggesting that a monetary reward system tied too closely to evaluations actually degrades performance, because it gets teachers focused on the evaluations rather than on the performance. The evaluations should primarily be used as a diagnostic, to identify correctable deficiencies in teacher performance so they can be corrected through staff development, and to identify gross deficiencies in teacher performance so the teachers in question can be dismissed.

4. Similarly, across a system, what evaluations are useful is for research purposes and to drive market discipline. Evaluations of a school should be very useful to parents seeking to select a school for their child. Schools that consistently achieve high valuations (particularly for value-added metrics) should be objects of study by administrators and others looking to replicate that performance in lower-performing but still basically well-run schools. The least-important use of the evaluation is to directly “reward” or “punish” a school bureaucratically – and, indeed, if that becomes the primary use then the school is likely to start focusing overwhelmingly on the evaluation process and lose sight of actual performance. I’ve seen this happen over and over in New York City schools; it’s not a theoretical question.

And it helps explain the inherent tension between teachers unions and the rest of us. Unions exist to protect the interests of their members. Even in the best case scenario, that means lobbying for an evaluation system that maximizes fairness to the people being evaluated. As citizens, our primary goal should be creating the best education system possible, even if doing so sometimes means (for example) that the teacher most desserving of a bonus doesn’t get one. Saying that there is a conflict between the common good and the ends of teachers unions isn’t a condemnation of the latter. It’s just a fact. And everyone seems to understand the basic concept if you talk about prison guard unions.

Part of what makes me nervous is that productivity varies dramatically within industries. It is very common for comparable factories at the 90th percentile produce four times as much as factories at the 10th percentile. Moreover, the scorecards and shortcuts used by factories at the 90th percentile wouldn’t necessarily work for those at the 10th percentile. Managerial insights are usually embedded in a complex tangle on personalities and practices that can’t easily be replicated. This is natural, and I’d say that I’d much rather see a few firms race ahead than allow all firms to remain mired at the low end of the productivity spectrum. Suffice it to say, this is not the ethic that governs how we generally think about public schools.

In a time when at least half of the political spectrum is deeply troubled by inequality, i.e., by the fact that some firms, individuals, and households are racing far ahead of others, what at least some education reformers are saying is that we want to unleash a few inventive, well-managed schools to start deploying the same per pupil resources to much greater effect. That is, we want to, in the short run at least, make the K-12 educational landscape more unequal, in the hope that leading schools will identify instructional methods, e.g., effective virtual instruction, that will prove scalable.

Much depends on how one interprets the fact that some firms, individuals, and households are racing ahead of the others. I take what I think of as a nuanced view. Generally speaking, some firms, individuals, and households race ahead of others due to a combination of luck, opportunity, and smart investments in organizational capital. In some cases, we see rent-seeking, tax and regulatory arbitrage, etc. But whereas Simon Johnson and many of my friends on the left see this as the dominant narrative, I see it as a significant but nevertheless relatively small part of the wage dispersion story.

Nicholas Bloom and John Van Reenen have written a neat essay in the Journal of Economic Perspectives on how effective management practices spread. I was struck by many of their observations, including some that will be familiar to those of you who see organizational capital as very important (“firms that more intensively use human capital, as measured by more educated workers, tend to have much better management practices”).

The United States has a commanding lead in terms of the quality of management in firms. This is very interesting considering our relative weakness in terms of educational attainment at the median in the prime-age cohorts. And I suspect that this feeds back into wage dispersion as well as assortative mating, family breakdown, and other sources of “stickiness” at the low end of the income distribution. For a variety of reasons, our economy is rewarding people with managerial skills, and, in a crude sense, one might be able to extrapolate the ability to manage a wide range of tasks in the workplace to the ability to maintain constructive relationships in other domains. The obvious objection is that many hard-charging executives neglect their families and personal lives, etc. But it could also be true that the that neglect of parental responsibilities is somewhat more common among those marginally attached to the labor force, due to the greater prevalence of substance abuse and other risky behaviors.

That’s an interesting insight into the general problem with quantitative measures. Here are a few points in response:

1. You need some system for deciding how to compensate teachers. Merit pay may not be perfect, but tenure plus single-track longevity-based pay is really, really imperfect. Manzi doesn’t say that better systems for measuring teachers are futile, but he’s a little too fatalistic about their potential to improve upon a very badly designed status quo.

2. Manzi’s description…

evaluating teacher performance by measuring the average change in standardized test scores for the students in a given teacher’s class from the beginning of the year to the end of the year, rather than simply measuring their scores. The rationale is that this is an effective way to adjust for different teachers being confronted with students of differing abilities and environments.

..implies that quantitative measures are being used as the entire system to evaluate teachers. In fact, no state uses such measures for any more than half of the evaluation. The other half involves subjective human evaluations.

3. In general, he’s fitting this issue into his “progressives are too optimistic about the potential to rationalize policy” frame. I think that frame is useful — indeed, of all the conservative perspectives on public policy, it’s probably the one liberals should take most seriously. But when you combine the fact that the status quo system is demonstrably terrible, that nobody is trying to devise a formula to control the entire teacher evaluation process, and that nobody is promising the “silver bullet” he assures us doesn’t exist, his argument has a bit of a straw man quality.

My post wasn’t about if we should use quantitative measures of improvement in their students’ standardized test scores as an element of how we evaluate, compensate, manage and retain teachers, but rather about how to do this.

Two of the key points that I tried to make are that the metrics themselves should likely be much simpler than those currently developed by economics PhDs, and that such an evaluation system is only likely to work if embedded within a program of management reform for schools and school systems. The bulk of the post was trying to explain why I believe these assertions to be true.

An additional point that I mentioned in passing is my skepticism that such management reform will really happen in the absence of market pressures on schools. Continuous management reform, sustained over decades, that gets organizations to take difficult and unpleasant actions with employees is very hard to achieve without them. There’s nothing magic about teachers or schools. The same problems with evaluation and other management issues that plague them arise in big companies all the time. It’s only the ugly reality of market discipline that keeps them in check.

THE REVIEWS ARE IN – SNAP POLL FROM CBS: “An overwhelming majority of Americans approved of President Obama’s overall message in his State of the Union on Tuesday night, according to a CBS News Poll of speech watchers. According to the poll, which was conducted online by Knowledge Networks immediately after the president’s address, 92 percent of those who watched the speech approved of the proposals Mr. Obama put forth during his remarks, while only 8 percent disapproved. … Americans who watched the speech were generally more Democratic than the nation as a whole.” … FROM CNN: “A CNN/Opinion Research Corporation survey indicated that 52 percent of speech watchers had a very positive reaction, with 32 percent saying they had a somewhat positive response and 15 percent with a negative response. … Those numbers indicate that the sample is about nine to ten points more Democratic than the population as a whole.” … AND FROM GQR, VIA POLITICO44: “The firm monitored the reactions of swing voters and unmarried women from Colorado as they watched the speech. According to the analysis, before the address, the test group’s approval of the president was 30 percent – by the end of the speech, the approval rating had gone up to 56 percent.” http://bit.ly/dMdVnT and http://bit.ly/fhBhgN and http://politi.co/ffVLil

The substance of Obama’s speech was moderate liberalism — we like business, but government has a role too, neither too much nor too little, etc. It’s hard to attach that kind of case-by-case pragmatism to an overarching theme. But I do think Obama pulled it off pretty well. He took a fairly hackneyed idea — the future — and managed to weave it into issue after issue, from infrastructure to energy to deficits to education and even foreign policy.

I thought Obama explicated his idea about American unity better than he has in the past. The notion of unity has always sat in tension with the fierce ideological disagreement of American politics, and indeed the latter has served as a rebuke to the former. I thought Obama effectively communicated that the messiness of political debate is a part of what makes America great, to turn that into a source of pride. He simultaneouly placed himself both within and above the debate.

If you were a visitor from Mars, watching tonight’s State of the Union address and Paul Ryan’s Republican response, you would have no reason to think that the looming insolvency of our entitlement system lies at the heart of the economic challenges facing the United States over the next two decades. From President Obama, we heard a reasonably eloquent case for center-left technocracy and industrial policy, punctuated by a few bipartisan flourishes, in which the entitlement issue felt like an afterthought: He took note of the problem, thanked his own fiscal commission for their work without endorsing any of their recommendations, made general, detail-free pledges to keep Medicare and Social Security solvent (but “without slashing benefits for future generations”), and then moved swiftly on to the case for tax reform. Tax reform is important, of course, and so are education and technological innovation and infrastructure and all the other issues that the president touched on in this speech. But it was still striking that in an address organized around the theme of American competitiveness, which ran to almost 7,000 words and lasted for an hour, the president spent almost as much time talking about solar power as he did about the roots of the nation’s fiscal crisis.

Ryan’s rejoinder was more urgent and more focused: America’s crippling debt was an organizing theme, and there were warnings of “painful austerity measures” and a looming “day of reckoning.” But his remarks, while rhetorically effective, were even more vague about the details of that reckoning than the president’s address. Ryan owes his prominence, in part, to his willingness to propose a very specific blueprint for addressing the entitlement system’s fiscal woes. But in his first big moment on the national stage, the words “Medicare” and “Social Security” did not pass the Wisconsin congressman’s lips.

The call for more creative thinking in American education. Creative thinking is good, obviously. But the kids who are in most trouble need more drill, not more questions about their feelings.

The too clever-by-half slip from the need for government to invest in basic research (yes) to the value of government investment in development of particular energy technologies (a record of failure).

The pledge to put electric vehicles on the roads. So long as 50% of our power comes from coal, electric vehicles are not “clean.”

The pledge to reach 80% clean electricity by 2035. If this is done by neutral across -the-board means like carbon taxes, fine. If done by favoritism for particular energy forms – and especially by tax credits or subsidies – it’s national industrial planning and is bad.

The misleading implication that bestowing more college degrees will address educational deficits. It’s the low quality of American secondary education that is the problem.

The endorsement of DREAM – made worse by the total fuzz of the commitment to immigration enforcement.

No mention of Colombia FTA in trade section of speech.

Very backhanded comments on deregulation

Repudiation of benefit cuts to future Social Security beneficiaries.

Silly earmarks pledge 100% guaranteed to be broken.

Graceless comment about restoring America’s standing: ill-judged from a president whose foreign policy becomes more continuous with his predecessor’s seemingly with every month.

If you were expecting a moderate Obama or a bold Obama, you were disappointed, most likely, by Tuesday’s State of the Union Address. In a nutshell: Obama proposed a ton of new domestic spending, promised to freeze discretionary spending (attained by savaging defense), abstained from offering specifics on entitlement reform and largely ignored major foreign policy changes. Moreover, the delivery was so listless that this State of the Union address likely garnered less applause than any address in recent memory.

But the mystery is solved: There is no new Obama, just a less snarly one. But it was also a flat and boring speech, too long by a third. Can you recall a single line? After the Giffords memorial service, this effort seemed like Obama had phoned it in. Perhaps that is because the name of the game is to pass the buck to Congress to do the hard work of digging out of the fiscal mess we are in.

Obama’s domestic policy is big on “investments” — not yours, the government’s. That is, spending. It’s a throwback to the vocabulary of the Clinton era. “The kids” must not be far behind. And there they are. They need more of your dough for their education.

“We do big things,” Obama says. I think when he says “we,” he means big government. The speech is long on domestic policy cloaked in the characteristically disingenuous rhetoric designed to conceal the substance. Obama advocates some kind of a freeze in federal spending. I’m not sure how that squares with the call for more “investments.”

Obama acknowledges the tumult in Tunisia thusly: “We saw that same desire to be free in Tunisia, where the will of the people proved more powerful than the writ of a dictator. And tonight, let us be clear: the United States of America stands with the people of Tunisia, and supports the democratic aspirations of all people.” Where does the United States of America stand tonight with respect to the people of Iran? We’re still waiting to hear from Obama on that one, but I guess we can infer he supports their aspirations as well. The people of Iran are included in “all people.”

The speech does have several good lines. Here is one of them: “I call on all of our college campuses to open their doors to our military recruiters and the ROTC.” It’s a pity that Obama has to gild it with the usual gay rights boilerplate. This line also deserves a nod: “I know there isn’t a person here who would trade places with any other nation on Earth.” Unlike most of the rest of the speech, it has the advantage, as Henry Kissinger might say, of being true.

Obama’s advent gets the usual iteration tonight: “That [American] dream is why I can stand here before you tonight.” And he includes Biden: “That dream is why a working class kid from Scranton can stand behind me.” But Biden’s rise too is a tribute to the advent of Obama.” And he includes an uncharacteristically gracious salute to Speaker Boehner: “That dream is why someone who began by sweeping the floors of his father’s Cincinnati bar can preside as Speaker of the House in the greatest nation on Earth.”

It’s a pity that Obama hasn’t found previous occasions to articulate American exceptionalism. Indeed, he has essentially denied it. Maybe he didn’t think it was true before the advent of the Age of Obama, or maybe he chooses not to share his innermost thoughts on the subject with his fellow citizens tonight.

Much has been made of Michelle Bachmann’s “Tea Party” response to the State of the Union.

For days the media has been playing this up as a major conflict within the Republican Party. In fact, a number of Republican leadership aides pulled out all the stops trying to get the networks to ignore Michelle Bachmann.

Kudos to CNN for its willingness to cover the speech in full.

I must admit I was deeply nervous about the speech, but I am delighted to say I was wrong. Michelle Bachmann gave the best speech of the night.

While the President sputniked and Paul Ryan went off on some high minded rhetoric, Michelle Bachmann kept to nuts and bolts. Her speech was based on actual economic data with actual, substantive policy suggestions for change.

Paul Ryan’s speech was okay. His blood shot eyes and Eddie Munster, Jr. haircut could have used some work. But he was good. Michelle Bachmann, however, shined in an easy to understand speech with a common man touch.

I’m glad I was wrong. And it just goes to show that the narrative of concern, built up in the media in large part by nervous Republicans, was silly. It yet again shows the GOP is unwilling to seriously treat the tea party movement as a legitimate player.

Rep. Michele Bachmann made history tonight–not just for being the first representative of the Tea Party to give a State of the Union response, but also for flatly refusing to look America in the eye.Bachmann, who came equipped with charts and Iwo Jima photos, began her speech looking slightly off camera. As Bachmann spoke, viewers–including the former MSNBC host Keith Olbermann–took to Twitter to ask a simple question: “what’s she looking at?”

As Olbermann tweeted, “Why isn’t Rep. Bachmann LOOKING AT THE DAMNED CAMERA?” He added later, “Seriously, somebody at the Tea Party needs to run on the stage, grab her, and POINT TO WHERE THE CAMERA IS.”

On CNN, Erick Erickson reported that Bachmann mistakenly focused on a camera recording the speech for the Tea Party Express, instead of the other camera capturing the speech live for the entire country. Jeepers.

Compared to President Obama’s traditional SOTU speech, and Rep. Ryan’s response, the Bachmann speech was unique. It had charts and multimedia, and it had the weird vibe of listening to a person who seems to be talking to somebody else.

He still loves his wife. But after 25 years of marriage, he has lost his enthusiasm for sex with her. Still. It is Valentine’s Day. And she has been hinting. So he takes her to a nice dinner, uncharactertistically orders an after-dinner drink, and feels extra discouraged when it only makes him more tired. He is 55. And so tired. Upon returning home, he wants more than anything to just fall asleep, but damnit, he makes the effort. He surprises her with a gift, lights candles, and dutifully makes love to her in the fashion he thinks that she will most enjoy.

It is with similar enthusiasm that some responses to the State of the Union are penned. Everyone expects that it will be covered by political bloggers, newspaper columnists and magazine writers. Especially at movement magazines on the left and right, lots of people are going through the motions, feigning passionate intensity that isn’t there. In marriage, it is perfectly understandable for one partner to occasionally perform despite not being in the mood. Sex is built into the expectations. Justifiably so. But I’m skeptical about the system of expectations in political letters. Fresh insights are nice. I’ve read good stuff about last night’s SOTU. We’ve linked some of it here. What I find pointless is the completely predictable boilerplate that gets published. The banal right-leaning editorial inveighing against the speech. The left-leaning editorial vaguely extolling its virtues. If every possible reader will agree with everything in a piece what exactly is the point of writing it?

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Obviously, I agree with Julian. I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer. Personally, I kind of doubt that, but this is completely beside the point. On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck. And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system. If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers. I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”

This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.

But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.

Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.

It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?

If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.

Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.

What I’ve yet to see answered to my satisfaction is Radley Balko’s question

The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.

But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)

Chait writes:

Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.

Noah Millman also responded to my earlier post.

He writes:

…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?

First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.

I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.

There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)

Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’

That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

Why I am Not a Conservative

Short answer: When I think about the GOP retaking Congress I get cold sweats and flashbacks of 2000-2008. Ditto that for the prospect of say, Newt Gingrich sitting in The Oval Office. The only Republicans who are at all honest – like Gary Johnson who has really good civil liberties bona fides – would A) never win and B) are really way too economically conservative for me. So yeah, Republicans taking back Congress in a couple months is just bad news as far as I’m concerned.

[…]

Long answer after the fold…

It’s certainly been a change of pace and perspective for me to blog here at Balloon Juice, and one I’m profoundly grateful to John for. I’ve been drifting leftward for quite a while now (from dissident conservative to fed-up libertarian to, more recently, pro-market liberal with libertarian and especially civil libertarian streaks) – so drifting leftward, but on uncertain feet. And one weakness of my blogging style and perhaps of the habits I’ve gotten into blogging at The League of Ordinary Gentlemen, is that I’ve been able to walk this particular ideological tightrope past the point of its usefulness. The ‘pox on both your houses’ style really is sort of annoying after a while even if it is unintentional and even if it is due to honest doubt rather than an attempt to please everyone. Certainly it’s nothing to build one’s political philosophy upon. And quite frankly, the pushback I’ve gotten in the comments about having it both ways is fair, and it’s gotten me thinking – a lot – about picking a side. How you frame your argument and who you frame it for matters. Picking sides matters.

So I will. I no longer have any desire to be considered a conservative – and no longer consider myself one (I do have a somewhat anti-modernist streak, for instance, which I blame on all the fantasy literature I read as a child but which is more a sort of romanticism than anything very political. I recall as a child being quite depressed by the thought that no matter how far I walked in any direction from my home I would inevitably come up against a paved road. How this translates into right vs. left is another matter though it does make me a strong supporter of localism and buying locally and so forth.)

I’ll vote Democrat this fall and I’ll almost certainly vote Democrat in 2012. If I’d been a Senator last year I would have voted for the HCR bill. The Democratic Party has its flaws but at least it cares about governance, at least Democrats try to make the world a less harsh, more egalitarian place even when sometimes their policies backfire or are simply wrong to begin with. And liberalism generally is just more serious an endeavor than conservatism is. More wonky, more beholden to, you know, data and facts.

I have always voted Democrat in any case, even as a self-described conservative, and remain pro-gay-marriage, anti-war, anti-torture, and against the drug war, against the security state, against crony capitalism. It’s not my politics so much that have undergone a change lately (though they have as well), but my thoughts on who I should and should not align myself with, and why this is important

Conservative politics don’t even lend themselves all that well to conservative ends to begin with.

For instance, I’d say the generous maternity leave in Sweden or Germany is far more in line with a belief in the importance of family than our lack of any policy to that effect. If being pro-family is conservative then I guess I’m conservative in that way – but I think ‘family’ should include committed gay couples. If wanting a stable fiscal future is conservative, then again I suppose that describes me. But we can’t simply cut spending down to the marrow to achieve this, nor should we. Slashing taxes at all costs is not fiscally conservative. Raising them is much more so – and conservatives are by and large too irresponsible to even countenance this. Only a very few are considering cutting defense spending to help balance the budget. And indeed, there are a very few very smart, honest, hopeful thinkers on the right who I admire a great deal but they are only a very few. And not movers and shakers in any case. On the libertarian front – or the liberal-tarian front at least – I see much more hope.

I also share a good deal more cultural affinity with the left, broadly speaking, than with the right and my cultural politics have always reflected this. I watch Colbert and the Daily Show and almost never turn the channel to Fox News. I listen to NPR. I hang out mostly with liberals. I have very liberal views on most social issues. I still believe in the importance of decentralized power structures, checks and balances, and in not placing too much faith in the state – but again, these are positions that are perfectly acceptable on the left in ways that my belief in gay marriage or higher taxes or non-interventionist foreign policy are simply not acceptable on the right.

Blogger E.D. Kain’s “Up from Conservatism” post had me thinking about something that I’ve seen over the years. You take a guy who was a conservative that starts to see some of the problems. They start to see them grow bigger and bigger and start to take on a crusade to reform conservatism. However, they continue to focus on the issues plaguing the movement, until the problems are all they see. At some point, they write a post renouncing their ties to conservatism and citing how awful the movement is. They either choose to become independent or go over to the liberal side of the political spectrum.

On the surface, one can look at this as proof about how messed up conservatives are. I don’t doubt that. The current state of conservatism has caused many to pull up stakes and move towards greener pastures. But I am also bothered by another concern and that is: why are there so few folks committed to reforming conservatism? Why is there not an effort to make conservatism more modern in the way it has been done in the United Kingdom?

On the six week road trip I took when I left DC and moved backed to California, a highlight was having drinks with E.D. Kain in Flagstaff, Arizona, where he lives with his wife and child, works a day job to pay the bills, and manages to produce lots of enjoyable blogging. He wrote a post a couple days ago that’s handily summed up by this line: “I no longer have any desire to be considered a conservative – and no longer consider myself one.”

Unlike me, but like a lot of politically active people, Mr. Kain finds value in associating himself with a political/ideological team. It ought to trouble movement conservatives that they’re losing a married father in a red state who champions localism, decentralized power, checks and balances, and not placing too much faith in the state, and especially that in his judgment, “these are positions that are perfectly acceptable on the left in ways that my belief in gay marriage or higher taxes or non-interventionist foreign policy are simply not acceptable on the right.”

There are many on the right, however, who’d celebrate his repudiation of the conservative label, because he says things like this:

I would have voted for the HCR bill. The Democratic Party has its flaws but at least it cares about governance, at least Democrats try to make the world a less harsh, more egalitarian place even when sometimes their policies backfire or are simply wrong to begin with. And liberalism generally is just more serious an endeavor than conservatism is. More wonky, more beholden to, you know, data and facts.

Mr. Kain is conflating the conservative movement, a deeply unserious and corrupt political coalition, with the political philosophy of conservatism, which is every bit as serious as liberalism, and isn’t inherently less wonky either.

I disagree with Mr. Kain on health care reform too. I opposed it, and would’ve much preferred something like the plan articulated here. But do I understand why he’s concluded that movement conservatism is to be abandoned? Yes, I understand, and much as I’d encourage him to vote for divided government this November, and to keep trying to reform the right, the more important message is directed at those who prefer a pure, narrow coalition of hard core conservatives to an inclusive one: Mr. Kain fits into neither the Republican nor the Democratic Party, but you’ve driven him toward the latter’s coalition by assessing his particular mix of beliefs and asserting that he is a statist on the side of tyranny.

E.D. Kain explains why he no longer considers himself a conservative. He gives a lot of reasons, some prompting one to ask why he ever considered himself a conservative. But testimonials of anyone publicly “switching sides” always interest me, and prompt me to re-examine just why it is I find the left such a non-option. And I think I can plow through all the unimportant things down to a couple of the core psychological-emotional motivating factors that defines whether any given person will identify himself as “conservative” or “liberal.”

One of those things is whether you truly believe a “conservative” or a “liberal” political worldview is sustainable. I admit I am intrigued by the notion of having every necessity of life guaranteed by the state, particularly when “necessities of life” include things like high-speed internet access and hip organic cuisine—one just cannot survive with the stigma of being unstylish or out of touch with leftist fads. And I am aware that Europe’s experimentation with this sort of indulgent welfare state is, by certain accounts, going quite well. But forgive me if I just don’t believe it. While I’m sometimes tempted by the idea of packing up and heading to a generous European welfare state and living it up while the ship goes down, my gut reaction is that the ship is in fact going down. I don’t think one can ever not be a fiscal conservative unless one is convinced that the new-math of welfare-state economics can actually work beyond a few generations. And I’m not [convinced].

Another deep-seated psychological reason I cannot throw my lot in with liberals is that I don’t have compassion for the most of the would-be beneficiaries of their social safety nets. Some, sure. But I’ve come to the realization that what I might consider terribly unpleasant, others consider perfectly tolerable. Take one example: My wife, though conservative, is a filmmaker and photographer, and thus has a long list of Facebook friends on polar opposite sides of the political spectrum. When a video went around the internet a while back profiling an Orange County, California family living in a motel room, the liberal bloc of my wife’s Friends noted the travesty of conservative OC governance that would let something like that happen in such a relatively wealthy area. But this family was paying approximately $800 a month to live in a motel room. While Orange County is still an expensive place to live, it’s not so expensive that apartments can’t be found for that amount. Moreover, when the interviewer asked the family why they don’t move somewhere, perhaps out of state, where the cost of living is much more affordable. The family responded they had no interest in moving out of temperate and beatific Orange County.

This epitomizes the majority of accounts of the impoverished that I’ve been exposed to in my lifetime. Discomfort, yes. Dire straits, hardly.

That said in some ways, this is sad, because the American center-right needs more people like Erik. And yet, this is not surprising to me, though it is quite confusing. I don’t know if it’s age or what, but it has always seemed to me that Erik was trying to figure out who he was and where he fit politically. One moment he’s a Ron Paulite, the next moment he’s supporting Scott Brown, the next moment he’s writing the ultra-liberal blog Balloon Juice. Maybe he’s finally found out where he fits. If so, then I am happy for him even though it is the conservative’s loss.

I understand what Erik wants to do here, but it seems to me that it has been quite clear where he has stood and what side he has picked in all the many debates over the years. It was no secret that he was basically sympathetic to the health care legislation, to which I was opposed, and he was furiously hostile to the Arizona immigration law, which I find basically unobjectionable. The label he chose for himself was essentially irrelevant in both of those debates, and there was no danger that he would be confused with the people aligned on the other side of the argument.

I’m sorry to say that I find Erik’s post to be very close to the flip side of the argument that mainstream conservatives have deployed against dissident conservatives for years, which is that we associate with the wrong kinds of people, tolerate “liberal” arguments, and generally fail to be good team players when it comes to organizing for electoral politics and reinforcing absurd ideological claims. In other words, we are too close or insufficiently hostile to the other “side.” From what I can gather, Erik is telling everyone that he isn’t a conservative so as not to be mistaken for “one of them,” which is almost as depressing to watch as it is when a thoughtful person feels compelled to jump through a series of ideological hoops to prove that he is “one of us.”

I had to grimace a little when I read Erik talking about his cultural affinities. The point is not that I object to most of his cultural affinities. When I’m in my car on long road trips, I listen to NPR, too, and I have several friends to the left of Russ Feingold (as well as friends who are dyed-in-the-wool Republicans). I’m sure I could rattle off a list of other such “heterodox” behaviors, but I had thought that Erik agreed that these affinities have or ought to have no bearing on political coalitions. All of this reminds me of the ridiculous political categorizing that people wanted to impose on everyday habits during the debate over “crunchy” conservatism, as if eating organic vegetables or shopping at a co-op were proof of left-wing convictions. Erik continues:

I still believe in the importance of decentralized power structures, checks and balances, and in not placing too much faith in the state – but again, these are positions that are perfectly acceptable on the left in ways that my belief in gay marriage or higher taxes or non-interventionist foreign policy are simply not acceptable on the right.

Perhaps that’s true within the confines of conservative movement institutions and in many conservative media outlets and magazines, but it isn’t true of “the right” as a whole, and this exaggerates how acceptable decentralism really is on the left. There is sympathy for it in some circles, but is it “perfectly acceptable”? It probably depends on what’s being decentralized.

Perhaps I am still a rather conservative liberal, but at a certain point I just have to stop trying to come up with new contortionist tricks and taxonomical experiments to make my politics fit inside that particular label. If I were more conservative – if my beliefs on immigration or marriage were more to the right, or if my religious beliefs were very traditional in the ways that Daniel’s are, or if I distrusted government more – if any of these things were the case, I wouldn’t give a damn about the inclusiveness of the conservative movement, or the Republican party, or any of that – I would still call myself a conservative. But I am simply not all that conservative. And if the left is too statist, if liberals really do have a deep distrust of free markets or competitive federalism, or any of those other things that I think are important and good for society, well then perhaps they can be convinced otherwise. Perhaps in the end, only the ideas matter. Hopefully Daniel’s ideas about American exceptionalism and the limits of our nation’s power will be accepted by all political stripes. Hopefully good ideas will rise to the top of whatever ideological coalitions exist, and we will all evolve for the better.

As Conor notes in his post on the matter, there are many, many admirable, smart, honest people out there working to reform conservatism. And perhaps they will. One thing I noticed about myself was that I followed the British elections very closely, and was quite enamored with David Cameron’s Toryism – a rather liberal, modernized conservatism. I thought to myself, I could be a conservative like that. But then the coalition with the Liberal Democrats made me think even harder – would I fit in even better with that group? And the answer was yes, I probably would. I’m probably more the liberaltarian Lib-Dem than the modernized Tory.

I have nothing against conservatism the way I understand it, the way I wish it were represented and practiced in this country. I just don’t think that label belongs to me anymore.

The way I’ve been getting my hair cut for the past six months or so is that I bought a pair of hair clippers and I do it myself. I normally trim about twice a week, and this lets me keep the hair short at an acceptable cost. Once I screwed it up, then my hair looked funny for like a day until I figured out how to fix it.Meanwhile, meet the District of Columbia Board of Barber and Cosmetology:

The DC Board of Barber and Cosmetology (Board) regulates the practice of barbering and cosmetology while working diligently to raise the standards of practice; ensure quality service; establish accepted codes of ethical behavior, and protects the health, safety and welfare of the citizens and visitors of the District of Columbia by upholding the city’s Barber and Cosmetology laws and regulations. The Barber and Cosmetology license law (pdf) is defined in the Barber and Cosmetology Municipal Regulations, which took effect on May 2001.

The Board consists of eleven members appointed by the Mayor. The Board consist of three (3) barbers, three (3) cosmetologists, threes (3) specialists, all license and practicing for at least three (3) years. There are two (2) members (non-license) representing consumers. Six members of the Board constitute a quorum.

Regulation of this sort seems totally unnecessary. People don’t die of bad haircuts, and since hairstyle is a quintessential matter of taste there’s absolutely no reason to think consumers can’t figure out for themselves who has a decent reputation as a cutter of hair. You can cut your own hair perfectly safely in your own house, and if you screw it up all that happens is you need to find a real professional to fix it. But what’s more, even if regulation were somehow a good idea, the composition of the board couldn’t possibly serve a legitimate consumer protection function. It’s overwhelmingly composed of people from the industry whose incentive is to limit competition and raise prices.

Congratulations, Matthew Yglesias, you have just discovered what my economics professors used to call Barriers To Entry, in much the same way Charlton Heston discovered the secret ingredient for soylent green.

All those business lobbyists in Washington? They are not there to stop legislation. They are there to write legislation. Of course BP endorsed tougher regulations on oil drilling. It helps their side businesses in alternative energy and keeps wildcatters from drilling for oil.

Those tough regulations on Wall Street? Goldman Sachs wrote them. Hey, it paid Obama a million bucks for that seat at the table.

When I get time, I will explain why Bill Gates and other billionaire liberals create tax-free — er, non-profit — foundations. A hint: John D. Rockefeller V was born a millionaire.

Matt Yglesias figures that, since he’s able to cut his own hair, it’s silly to license barbers.

His commenters point out to him, fairly rudely, that people who handle straight razors probably ought to have some training and prospect of inspection from the authorities for health reasons. And that beauticians, who handle dyes and other chemicals, really need to be regulated. Apparently, they’ve explained this to him once or twice before, and hence their irritation.

Mostly, I think the commenters are right. While the free market would probably regulate simple barber shops — as opposed to beauty shops — with reasonable efficiency, we’d hate to have barbers routinely cutting people with infected implements. Let’s just say that the signaling mechanisms for that sort of thing are too slow for comfort.

Further, in terms of arguing by analogy, if Matt is an unlicensed barber, I’m an unlicensed taxi driver and restaurateur. The idea that because people can be trusted to do something for themselves, they should therefore be allowed to do the same things for the public on a professional basis is rather thin.

You’ll be unsurprised to know that I don’t have a lot to add on this subject. But I did get into a conversation about this with my haircutter once, and she pointed out that there’s more to this business than you might think. It’s true that clipping hair — which is the only side of the business that Matt and I ever see — isn’t especially dangerous. But for more complicated jobs, hair professionals handle a lot of dangerous chemicals and they need to know how to use these properly to insure that they don’t do some serious damage to their customers. That, apparently, is part of what they teach you at cosmetology school.

That’s what she said, anyway. Alternatively, maybe it’s all just a big scam. After all, plenty of women give themselves home perms and seem to survive the experience. Hair professionals should feel free to school us in comments.

Matt’s critics say that anyone using sharp objects or chemicals such as peroxide needs to be regulated and inspected. This, my friends, is a reminder that the American mania for credentialism (cf journalism) frequently travels well into the realm of the absurd.

Happily, this sceptered isle is a freer place entirely. No surprise then that the British Hairdressing Council is not happy. From their FAQ:

But surely everyone must be qualified before being allowed to practise?

Alas, not so; in fact, quite the opposite. Here in Britain, anyone is free to practise as a hairdresser without registration, without qualification, even without proper training. In short, hairdressing is totally unregulated.So is there no yardstick by which to judge hairdressers?

Yes, there is. In 1964, Parliament passed the Hairdressers Registration Act to give status to hairdressers and assurance to consumers. Under the Act, the Hairdressing Council (HC) was created to establish and maintain a register of qualified hairdressers. Hence, every State Registered Hairdresser (SRH) is officially recognised as qualified to practise hairdressing on the public.

Are most hairdressers registered?

Sadly, they are not. The 1964 law left registration a voluntary option. Only about ten per cent of hairdressers have ever exercised their right to a place on the official register. At the same time, with the industry unregulated, many unregistered operators might not be eligible for inclusion on the register.

Where does this leave the consumer?

In a far from ideal position. Choosing a practitioner in any unregulated industry is tricky; in an industry where part of the human person is being treated, it truly can be a lottery. While many consumers no doubt chance upon good stylists, others stray into the hands of incompetent operators and have experiences ranging from overpriced and unsatisfactory services to damaged hair and even injured scalp and facial tissue.

Surely all hairdressers are accountable for their professional actions? Isn’t this the role of the Hairdressing Council?

Had registration been mandatory, the Hairdressing Council would indeed regulate hairdressing much as the Medical and Dental Councils, for instance, regulate their sectors. However, so long as the Act remains voluntary, the HC has jurisdiction over SRHs only – complaints against whom are very few and far between.

Something must be done! To be sure…

If it can, why won’t Parliament take action?

Action by government ministers, rather than back bench MPs, is what’s needed. For the record, ministers are requested, regularly, to amend the Act. This campaign for a tightening of the law, spearheaded by the Hairdressing Council, is supported by the industry trade bodies, consumer groups, much of the media and, not least, consumers. A great many individual MPs also support the regulation of hairdressing.

And where does government stand on the regulation of hairdressing?

To begin, a few facts: First, no government is going to commit parliamentary time to bringing in legislation it feels to be unnecessary*. Second, no government is going to introduce what it regards as unnecessary regulation. Third, regulation, of pretty well any sort, is increasingly viewed at best with suspicion and at worst with contempt by business interests, including many salon owners. Fourth, governments tend to be wary of introducing laws viewed unfavourably by large or significant sections of the community. As to the stances adopted by recent governments on hairdressing regulation, when in power the Conservatives refused, consistently, to contemplate action. Their argument, repeated many times, was that “market forces are a sufficient regulator”. The current Labour government has listened to and acknowledged the merits of the case for regulation but has, at least so far, declined to act on the matter.

Have other measures been tried, through ordinary MPs in Parliament to bring in regulation?

Since the voluntary registration law was introduced in 1964, initiatives such as Early Day Motions, Ten Minute Rule Bills, Ministerial Questions and Private Members’ Bills have all been tried by helpful and supportive MPs. But lacking government support, none of these has succeeded. However, be sure efforts will continue.

I’m sure they shall! Somehow, however, the country has survived an unregulated hairdressing and barber-shop industry all these years and may yet, with god’s providence, do so in the future.Mind you, Sweeney Todd was a Londoner…

A number of people, including many commenters here and even alleged conservative James Joyner think you should need a professional license to become a barber because you might hurt someone with a straight razor. Uh huh. At best this would be an argument for regulating people who do shaves with a straight razor, which would be considerably narrower than current comprehensive regulation of hair stylists.

Meanwhile, though “torts and the free market will take care of it” isn’t the answer to everything, it’s surely the answer to some things. Getting some kind of training before you shave a dude with a straight razor is obviously desirable in terms of strict self-interest. If you screw it up in a serious way, you’ll face serious personal consequences and the only way to make money doing it—and we’re talking about a very modest sum of money—is to do it properly. People also ought to try to think twice about whether their views are being driven by pure status quo bias. Barbers are totally unregulated in the United Kingdom, is there some social crisis resulting from this? Barber regulations differ from state to state, are the stricter states experiencing some kind of important public health gains?

Last you really do need to look at how these things play out in practice. If you just assume optimal implementation of regulation, then regulation always looks good. But as I noted in the initial post the way this works in practice is the boards are dominated by incumbent practitioners looking to limit supply. One result is that in Michigan (and perhaps elsewhere) it’s hard for ex-convicts to get barber licenses which harms the public interest not only by raising the cost of haircuts, but by preventing people from making a legitimate living. States generally don’t grant reciprocity to other states’ licensing boards, which limits supply even though no rational person worries about state-to-state variance in barber licensing when they move to a New Place. In New Jersey, you need to take the straight razor shaving test to cut women’s hair because they’re thinking up arbitrary ways to incrementally raise the barrier to entry.

It’s worth noting that Barack Obama, back when he was a state senator in Illinois, pushed against some of this when it came to jail sentences and prohibitions on getting regulatory licenses:

Town Hall Meetings: On August 15 and 16, 2003 the North Lawndale Employment Network sponsored the annual Town Hall meeting for Congressman Danny Davis at Malcolm X College in Chicago. Brenda Palms Barber was one of the distinguished speakers for the Congressman’s opening address. Ms. Barber and Anthony Burton participated on a panel with State Senator Barack Obama and State Representative Constance Howard to discuss the federally funded Going Home program and several new laws that were passed by the state lawmakers. The lawmakers introduced to the audience several bills that had been passed, including one that would change some of the expungement laws in the State of Illinois and one bill that would allow formerly incarcerated individuals to seek regulatory licenses in several fields including barbering, nail technicians, cosmetology and dead animal removal. Under this bill, the formerly incarcerated individual would have the opportunity to seek a license once they have served their time in prison and have been given a certificate of good standing by the State of Illinois. NLEN also set up a booth at the Town Hall meeting to highlight its program and accomplishments.

Back then if you had a jail record you couldn’t receive most regulatory licenses. So if you were trying to escape from a life of crime, or even if you were tagged with a minor crime during a wayward period in your life, you would automatically have a wide variety of occupations immediately shut off from you. You couldn’t be a barber for instance. (You also probably couldn’t be a licensed fortune teller.) Whatever the idea behind this, in practice it’s going to take people at the edges and shut off a number of crucial options to them. I don’t know if this exists in most states, but it’s an obvious way to begin to push back against the worst excesses of license overkill.

So beyond just being a hassle these licenses can be a major form of explicit job segregation and can have major distributional problems associated with them.

Even the ESPN Ticker gives women short shrift – 96.4 percent of the information scrolling along the bottom of the screen was dedicated to men’s sports.

The finding is part of a 20-year study of sports coverage released by USC sociologist Mike Messner and Purdue University sociologist Cheryl Cooky. Though it was not surprising to discover that men’s sports gets more coverage, it was eye-opening when researchers found that women’s sports accounted for less than 2 percent of network news and ESPN’s SportsCenter.

“There’s a message that sports is still for, by and about men,” Messner said. “When will the news catch up?”

Just as surprising is that as more women than ever participate in all levels of sports, coverage of their gender is drastically declining. In 2004, network affiliates dedicated 6.3 percent to women’s sports. Last year it dropped to 1.6 percent.

“News programs are supposed to be a window to the world and there is a journalistic responsibility to reflect that,” said Messner, an expert in the sociology of sports.

In 1971, 294,000 high school girls played interscholastic sports. Today 3.1 million play, much closer to the 4.4 million boys who play high school sports.

Yet network affiliates ran 60 stories on NCAA men’s basketball in March 2009. There were no stories about women.

It’s not that ample coverage of men’s sports leaves no time for women. The researchers found that newscasts routinely air light sports features, such as a story about a hamburger with 5,000 calories and 300 grams of fat sold at a minor league baseball park in Michigan.

The discrepancy is important, Messner said, as it reinforces the stereotype that sports proves men are superior to women, that the women’s product isn’t the same quality or would not have the same mass appeal. Messner points out those arguments have been used before, such as when African Americans weren’t considered good enough to compete in Major League Baseball.

So if you love women’s sports, what can you do? First, support women’s teams and go to the games. Ask your parents and friends to go to the games. Get tickets for the Washington Mystics or the Freedom soccer team. And don’t forget all the wonderful local women’s college teams.

Second, watch women’s sports on television whenever you can. Women’s teams need all the fans they can get. Television news shows and newspapers are businesses that cover the most popular sports. In Washington, TV stations, radio shows and even KidsPost talk about the Redskins because so many people watch the games and are interested in the team.

Finally, don’t give up. Recently, I read the book “When the Game Was Ours,” about basketball legends Larry Bird and Magic Johnson. Author Jackie MacMullan mentions that Game 6 of the 1980 NBA championship between the Los Angeles Lakers and the Philadelphia 76ers was not on live TV. It was on tape delay late at night.

Thirty years ago, even the men’s NBA was not a big-time sport. It took years for the NBA to become so popular. Maybe with a little help, the same can happen with women’s sports.

But the heavy focus of news and highlights shows on men’s sports is not only fathomable but obvious—that is where the fans are. And that is where advertisers expect to find customers for “male” products such as beer, razors, and cars. Men’s professional sports are a fascination (obsession is more like it) to many millions of men, because they offer extreme competition, performance, and heroics. Women’s professional sports, however skilled and admirable, cannot compare in Promethean drama.

Even women prefer watching male teams. Few women follow the sports pages and ESPN, but many enjoy attending live games—featuring male athletes. According to Sports Business Daily, 31 percent of the NFL’s “avid fans” are women.

Nyad and the USC study authors demand that television cover women’s sports “fairly and equitably,” but the study never once mentions the word “attendance.” Shouldn’t fan interest in the games drive the media stories? Economist Mark Perry, my colleague at the American Enterprise Institute, looked at the numbers. For the 2009 season, the NBA got 92.3 percent of the total attendance for pro basketball (NBA plus WNBA), while the WNBA got only 7.7 percent of the total attendance (see chart below). But according to the USC study, the WNBA received 22.2 percent of the coverage. Perry’s conclusion: “So women’s pro basketball got a hugely disproportionate share of media coverage. Total attendance at NBA games was 12 times greater than attendance at the WNBA games, but media coverage was only 3.5 times greater for men than for women.”

I’m not a sports fan, but it seems pretty clear to me that almost nobody wants to watch professional women’s sports. The question is why. I suppose the feminists would say that the market actually is there, if only the people who run TV sports would notice. Really? You think that people who really only want to make money, and don’t care how they do it, are turning their nose up at an opportunity to exploit an untapped market? Highly doubtful. The more interesting question is why, in a sports-crazy nation, people — even many women — only really care about male sports.

Sports journalism has changed a lot since 1989, and contrary to what the USC study implies, anyone who wants to follow women’s sports is actually a lot better off now due to niche media that both offers coverage of practically any team one would want to follow, and helps explain why mass market programs like Sports Center and network news sports shows cover teams or athletes with niche audiences less — if you’re interested in the WNBA, you can buy a package through your cable company to get all the games, follow the season on ESPN.com, join a fantasy league, etc.

As a high school athlete, and a recreational athlete still, I’m totally behind the move to give girls an equal opportunity to benefit from college athletics, and if I have daughters one day, I’ll encourage them to play sports by installing a basketball hoop on the driveway and buying them surfboards. Upon going to college, I’ll want them to have an equal opportunity at getting an athletic scholarship. But there isn’t any reason why network news and ESPN should give equal time, or anything approaching it, to women’s sports — they should follow market demand (and when they depart from it, they should televise less golf, a sport with a tiny audience of very rich consumers).